On March 6, 2020, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its eighteenth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included reasonable accommodations; leave issues under the ADA, FMLA, and state and local leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including Coronavirus concerns, government investigations, and more. Marc Freedman, Vice President of Workplace Policy for the U.S. Chamber of Commerce, touched on many of these same issues as he provided insight into the current issues facing employers and proposed labor and employment regulations pending in the House of Representatives and Senate. Here are some highlights:

Reasonable Accommodations

Kathie Pontone discussed accommodation requests involving Service Dogs or Emotional Support Animals. If the disability is not readily apparent, certain follow up questions are permissible but should be used with caution. It is recommended that employers have a standard policy that they apply consistently for requiring documentation or veterinary certification forms.

Employers are increasingly likely to receive requests for accommodation involving medical marijuana, per Marc Sloane’s presentation. There is substantial grey area in the law because of the conflict between state and federal regulations – 33 states and the District of Columbia have legalized medical marijuana, but the drug is still considered a schedule 1 controlled substance under federal regulations. Despite that conflict, court rulings and administrative agency positions protect employees using medical marijuana. In certain states, courts have held that an employee cannot be denied any right or privilege for the use or possession of medical cannabis. Similar protection is codified in Maryland’s medical marijuana statute, although there have not yet been any court decisions in Maryland interpreting this provision. In addition, Maryland’s Commission on Civil Rights has stated that it would consider discrimination claims involving medical marijuana the same as it would any other discrimination claim. This means that employers should make sure they have contemporaneous evidence of impairment when they plan to take action against a worker for being under the influence at work.

Finally, Kraig Long discussed the requirement to reasonably accommodate an employee’s sincerely held religious beliefs, regardless of whether those beliefs are endorsed by a traditional religious group. Examples of such accommodations include making exceptions to dress policies or changing work schedules to allow employees to attend services.

Employee Leave Issues

The ADA, FMLA, and state and local sick leave laws present a patchwork of protection for employees and can pose significant implementation challenges for employers who have operations in multiple states. Kristy Eriksson, Stephanie Baron, and Paolo Pasicolan addressed the impact of using third party administrators, automatic termination policies, discriminatory parental leave policies and coordination of leave policies with applicable law. Key takeaways included a reminder that the ADA could be violated if employers implement categorical termination policies while an employee is out on extended leave, and that employers must check their health plan to determine whether, and when, to trigger COBRA notice for continuation of health coverage for employees on extended leave. In addition, presenters noted that as distinct from maternity or childbirth leave provided to birthing mothers, parental leave for bonding with a new child, whether biological or adoptive, should be offered to all parents regardless of gender to avoid discrimination concerns. Finally, employers were advised to review their policies to address the intersection between employer-provided benefits and state-provided benefits such as paid family leave.  Mr. Freedman also addressed the complicated legal landscape surrounding employee leave and presented current proposals for paid family leave and paid sick leave at the federal level.

Coronavirus, Contractors, Cyber Security and Government Investigations

HR professionals face a wide range of issues on a daily basis, none of which seems more urgent in the present moment than concerns about coronavirus in the workplace. Suzzanne Decker addressed best practices as employers face daily escalation. In this climate, employers are right to seek out resources and take pro-active action. The EEOC has released helpful guidance on preparedness for a pandemic in the workplace under the Americans with Disabilities Act. In addition, the CDC has issued Interim Guidance for Businesses and Employers. Key recommendations include having a plan in place for all employees to work remotely with little to no notice and considering whether additional paid or unpaid leave will be provided to employees who have exhausted leave allotments in the event of an illness.

Veronica Jackson presented strategies for minimizing the risk of data security breaches when an employee is terminated. Those include collecting all company devices, preserving logs of recent activity on remote devices, and disconnecting from remote access systems for departing employees before they leave the building.

Sufen Zhang addressed concerns surrounding H-1B employee relocation and telework requests. Notably, a change in location can trigger a change in status, and employers cannot allow employees to furnish the costs of legal and filing fees for amended H-1B petitions.

Holly Drumheller Butler discussed the precautions necessary involving government investigations and document requests. While employers cannot interfere with investigations, they should note that cooperation does not always equal capitulation to requests.  Employers are wise to seek counsel regarding any government investigation and have counsel present at any meeting regarding the investigation. In the event of a document request, employers should confirm the existence of a subpoena or search warrant before providing documents.

For more information and access to presentation materials, please visit the event site here.

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